All Forum Posts by: Tom Gimer

@Russell Brazil who is a regular contributor here knows these areas well. You should reach out to him. Good luck, Wyatt.

How about just a THIS IS WRONG button?

The powers died with the decedent. They estimated remaining lifespan wrong. The named attorney in fact can do nothing in that capacity.

If the deed is in the decedent’s individual name there is no trust involved at this juncture. 

Because what heir wouldn’t want to assume the liability without owning the asset.

DoT = Deed of Trust

With seller financing there is a deed to the buyer recorded along with a security instrument (either a mortgage or deed of trust). Using this method, if the seller has any financial issues such as judgments or liens they do not affect title to the property because it has changed hands.

As buyer I would prefer owner financing (deed + mortgage/DoT) over contract for deed. That would likely accomplish the seller’s goals as well… in the short term.

Survey or not, the buyer will own the encroachment issue after closing unless it’s properly addressed prior to settlement. 

Options are require the seller to obtain easement for the fence, give a reduction in purchase price, walk, or close as is and deal with this later (or never). 

If the neighbor’s tree is in fact causing the damage, this is a slam dunk trespass case. If it were my problem I would first send a demand letter to the owner of the tree advising of the damage (current and future estimated) and requiring abatement… and if no agreement was reached I would sue for the same legal and equitable relief.

Performance deeds cause title problems because they are by nature executed prior to default. That means no evaluation of LTV at time of default. If it could be argued that you violated the owner's right of redemption (robbing them of the equity they could otherwise realize through a private sale or foreclosure), you'll likely get sued and lose.

@Kyle Jacobson Plenty of benefits... faster close, much lower settlement costs, presumably a low rate on the existing financing.

Drawback would be the due on sale clause and needing to have a solid exit strategy if invoked.

Unknown would be status of current loan and the existence of other liens so this should absolutely be run through title like any other purchase/sale.